The Court continued in relevant part: We also disagree with defendant that Watts would have been decided differently under the recklessness standard we adopt today. Watts did not turn on the defendant’s subjective mens rea. It turned on the objective component of a prosecution for true threats: whether the defendant’s words, taken in context, would be understood as threatening to a reasonable observer. Watts, 394 U.S. at 708. In holding that they would not, the United States Supreme Court looked at the “context” of the defendant’s statement during a small-group discussion about police brutality at the Washington Monument, its conditional phrasing, and the reactions of others in the group (laughter), and concluded that the defendant’s statement was “political hyperbole” and not a true threat. Ibid. Watts concluded that there was no true threat because the statement at issue was not objectively threatening; the defendant’s subjective mens rea did not come into play.
In addition to a subjective mens rea of at least recklessness, we hold that an objective component is necessary for a prosecution for a threat of violence under N.J.S.A. 2C:12-3(a) to survive First Amendment and Article I, Paragraph 6 scrutiny.
On the objective element, we depart from Counterman and from the charge that the trial court provided to the jury in this case in one minor respect. The trial and appellate courts in Counterman had assessed the threat under “an objective reasonable person standard,” requiring the State to prove “that a reasonable person would have viewed the . . . messages as threatening.” Counterman, 600 U.S. at 71 (emphasis added) (internal quotation marks and citations omitted). And the trial court here charged the jury that the threat “must be of such a nature as to convey menace or fear of a crime of violence to the ordinary person. It is not a violation of this statute if the threat expresses fleeting anger or was made merely to alarm.” (emphasis added).
The Court’s reference to Article I, Paragraph 6 refers to our NJ State Constitution. Our State Constitution sometimes provides greater protections to defendants than the federal constitution. Under principles of federalism, it can never provide less protections than the federal constitution.